February 23, 2011

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” [Attorney General Eric] Holder said in a statement.

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

Eric Holder is a strange one. I wonder if he has much control of the Justice Department.

Kind of seems to be a pattern. Obama appoints weak non-entities as cabinet secretaries and agency heads, and the lower ranks just take off in whatever directions. Could be expressing a belief of his, like "Power to the People!" and things will just automatically get better if the lower ranks get to run the show?

Hillary is, of course, an exception, but she got the State Dept. for a different reason, and they do seem to have got even Hillary isolated over there.

I am curious how the Prez can just decide what laws he likes and what ones he doesn't. Didn't he take an oath to uphold ALL the laws?

And on a related subject, how's that "repeal" of DADT working out for you all?

It is still, today, illegal for military members to engage in homosexual behavior. It is still, today, legal as it always has been, to be homosexual in the military, open or otherwise, provided you don't engage in homosexual activity.

I am still offering to bet anyone $5 that homosexual acts by military members (nttatwwt) will still be illegal in Feb 2012. I'll even go further and bet that they will still be illegal in 2013.

The law was passed by Congress and signed into law by the Chief Executive. Sure, it was one of Obama's predecessors. But there must be some continuity of enforcement. Otherwise laws will simply get switched "on" or "off" based on the latest election.

Isn't it the Justice Department's job to define Constitutionality of a law when challenged. Or is it for the President to pick and choose what HE thinks is Constitutional and decide whether or not he wants to defend the law or uphold the law? If so, why do we have a Constitution and why did the framers make 3 separate branches of government?????

Personally, I don't think that DOMA is a good law.

However, it is NOT within the power of the Executive Branch to unilaterally make that decision because he doesn't like a particular law and likes others instead.

This allows the Executive to pick and choose the laws it wants to enforce in order to sway voters and gain popularity with selected special interest groups.

The President is supposed to be President of the Country. If the law is Un Constitutional, then let the Supreme Court make that decision.

The office of the President should defend the law, just for the sake of respect for the office he holds. He will not want the laws he signs to be stripped of their effect by future presidents doing the same thing.

The Pres took an oath to defend and enforce the constitution. He is simply following his oath. How can one argue in good faith that he could do anything else given his view the law is unconstitutional?

(If the S.Ct had already ruled the law unconstitutional then he would have no choice but accept its view, but they have not yet done so.)

This is happening because The Zero has begun to realize, or someone has finally gotten past his monumental ego, that the country is headed for very bad times due to his policies at home and abroad and that he will need every Democrat constituency he can cultivate - whether he likes them or not.

DOMA, which I thought at the time rather pointless, has yet to be declared unconstitutional anywhere but in The Zero' corrupt political calculations.

It's about time the government got out of marriage completely anyway.-I'm a Shaaaaark

I could go for that but could you? You give up running to gov't if I choose to ignore what you call a marriage, pay my employees I do recognize as married more, rent to the truly married and refuse the applicants claiming pretend marriages, and so forth. In return, I give up a lot of gov't meddling in my personal and private business.

You know, in spite of being the first black president, Obama seems to have done very little for the black community.

Refusing to defend DOMA will not go over well with them, especially coming out of the mouth of a black AG. Gay marriage is an issue on which blacks part company from the liberal consensus in a big way.

Oh well, what are they gonna do in the end? Vote for a white republican?

I could go for that but could you? You give up running to gov't if I choose to ignore what you call a marriage, pay my employees I do recognize as married more, rent to the truly married and refuse the applicants claiming pretend marriages, and so forth. In return, I give up a lot of gov't meddling in my personal and private business.

Yeah, Shark, go for it!

Two things with what I'm saying - Everyone would have 'Civil Unions'. It would be called 'Marriage' by those whose religion recognized it, but it would have no legal standing. The Civil Unions, however, are legal contracts just like any other.

Discriminating against people based on lifestyle choices, on the other hand, is apparently unconstitutional, and you'd be pretty much screwed.

I feel kind of sorry for polygamists, since they'll be left out of this whole re-definition of marriage thingy. Maybe we can get them in under the wire, and then go for people who want to marry their dogs.

Beyond the hypocrisy of Obama's positions (which we all should recognize) there is a fundamental principle here: the Defense of Marriage Act was passed by Congress and signed into law by President Clinton, and so it the duty of the executive to defend it — but then, King Obama is above the law. I do not particularly care for DOMA, but does the executive branch have the descretion to ignore laws it does not agree with? Especially slimy when Barack Obama basically defended DOMA when he was running for president.

If President Obama wants to get rid of the Defense of Marriage Act, isn't the proper way to do it is for Congress to pass a bill and for Present Obama to sign it into law?

If the S.Ct had already ruled the law unconstitutional then he would have no choice but accept its view, but they have not yet done so

An oath to defend and uphold the Constitution does not require the President to accept the Supreme Court's opinion on what is or is not Constitutional. The reason being that nowhere in the Constitution does it say that the Supreme Court has that power.

If the Supreme Court issues a ruling that conflicts with the Constitution, the President has both the right and the duty to ignore that ruling. In practice, however, Presidents seldom do that.

Like it or not, American democracy has always been able to defend certain norms and morals against a "persecuted minority" that perhaps loves beastiality, or seriously oogling child porn, or saying to a persecuted minority of hunters that wants to go out on Sunday "Sorry, no hunting that day. We passed a law."

"But...but...I am just a persecuted minority that wants to grow his own Pot! Help me too, Obama - Mr. Protector of all persecuted on the intolerant morals of the majority!!"

"Spring is coming. Why shouldn't I as a persecuted minority practice my nudist beliefs on my front lawn. But for the intolerant majority in my neighborhood!"

"Salaaaam! Why should I not have 8 wives and dress them in tents. What business is it of infidels not here in Dearborn to say I am to be discriminated against?"

I feel kind of sorry for polygamists, since they'll be left out of this whole re-definition of marriage thingy. Maybe we can get them in under the wire,

This makes sense though - where does this end? We can all say, "Well, common sense will prevail..." but we all know that is a joke - there will always be someone, somewhere, who will be the new "victim" of discrimination and society will have to continue accommodating ever new 'right' that comes along. They keep finding new ones every day.

I feel kind of sorry for polygamists, since they'll be left out of this whole re-definition of marriage thingy.

What is weird to me about anti-polygamy laws is that the government goes well beyond refusing to recognize polygamous marriage -- it actively prosecutes people who are engaged in it. So if, for example, you shack up with three women, that's fine and legal. If you hold a ceremony to officially commit to them, that's illegal. There's something wrong there.

I see the logic in not legally recognizing such marriages, simply because common law doesn't really cover how such arrangements should be handled. But a man who marries and supports three women is acting better than a man who simply sleeps around and knocks them up. Yet we criminalize the former behavior and allow the latter. Huh?

Professor Althouse, while you're taking us down memory lane, remind us all about the constitutional amendment that was just ratified to add sexual preference to the classifications protected under the Equal Protection Clause of the Fourteenth Amendment. Failing that, point us to the SCOTUS decision during Obama's term that reinterprets the Fourteenth Amendment to do that.

Yes, partially true, but 2010 was all about the economy and one could argue low Dem/Lib enthusiasm was partially because Obama did not go far enough re: equal protection under the law re: his liberal base and many of these folk stayed home.

The yin and yang of American political misplaced panderin' to the opposing pol party.

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Yes Virginia, as much as Reps keep sayin' Obama is to the left of Kucinich, he has disappointed his base in many ways ie get the troops the f*ck out of Afghanistan!

going to war against the majority of voters to appease your minority base does not appear to be a particularly wise strategy for reelection

I'm not sure what the situation is in Wisconsin, but here in California -- and in most states, nationally -- legislative districts are so gerrymandered that most politicians are basically guaranteed election once they win the primary.

So for most state legislators and Congressional representatives appealing to the base is not only *a* good strategy for getting re-elected, but the *only* good strategy for getting re-elected.

Boy, I don't know where the line is here. Hopefully someone will link to some constitutional arguments.

The president is to "faithfully *execute* the laws of the land." I'm not sure that means defending them in court, *if* the law has been found unconstitutional by a federal judge. That's just my own perception, however. This seems like a very grey area to me.

I am for gay marriage. I don't think there is or has been a good argument for government to discriminate. However, Obama is ignoring a federal judge in regard to oil drilling. And now this.

I do hope someone can point me in the direction of serious constitutional arguments regarding what it might mean to say, "faithfully execute". I mean do we want the president defending a law that says slavery is legal?

Yes, partially true, but 2010 was all about the economy and one could argue low Dem/Lib enthusiasm was partially because Obama did not go far enough re: equal protection under the law re: his liberal base and many of these folk stayed home.

The yin and yang of American political misplaced panderin' to the opposing pol party.

2012 will also be about the economy. The Lefties seem to think it will be better next year, or at least the same.

steve u said... The Pres took an oath to defend and enforce the constitution. He is simply following his oath. How can one argue in good faith that he could do anything else given his view the law is unconstitutional?

Obama split the difference in 2008. when he was in churches, he defined marriage as 1 man, 1 woman, etc.

On the stump, he opposed DOMA, but never really artculated a reason, other than "rights for all Americans". He, the constitutional law prof, never uttered the word unconstitutional. what he said is repeal, which implies to me he thought the law was legal, just not good policy.

now 2 years later, something must have changed, oh yeah, he needs to stroke the base.

Once more Wisconsin is at the center of all that is happening...thanks to mild mannered Professor Althouse who obviously got through to Obama. Perhaps Obama comments here regularly under another name. Now who could that be? My guess is Revenant.

The President's power is to not sign laws he thinks are unconstitutional, and I wish they did that more - like Bush with McCain-Feingold.

But if the President just decides he won't enforce laws, laws that were duly passed by Congress and signed by one of his predecessors, just because he doesn't like them, that opens the door to complete chaos.

If you don't like a law, work with the Congress to have it repealed, but this is an unconstitutional usurpation of Congress' lawmaking power.

Fantastic. Glad to see some spine from this administration. Also fascinated to see the reaction from Congress. Apparently they have the right to appoint lawyers to defend acts of Congress if the Justice Department declines. I've never heard of such an event actually happening but we live in interesting times.

So if they choose not to defend it, what is it's current status? It's still a law until a court decides otherwise ( or has a court already decided that and this is only in regards to an appeal? ) If it is still a law are they going to continue to enforce it until a court finds it unconstitutional? If they choose to not defend it could the court still use it's own judgement to determine it to be constitutional?

And if the next president is a Republican, could someone sue that ObamaCare is unconstituional ( assuming that the current lawsuits fail ) on some made-up grounds, have the president choose to not defend it, and essentially have the law repealed basically on the president's whim? If so, that's a pretty troubling precident.

I say "dissents" because I'm thinking positively about which side of the bed Mr. Justice Kennedy gets out of on the day of the case's oral argument. Or perhaps on his daily horoscope and the other sweet mysteries of life he's experiencing at that moment. I actually do have a non-snarky theory, which is that whatever skepticism Kennedy has toward what he'll perceive as persecution of gays, it will be outweighed by his respect for democracy. Which, again, is why I think Boies & Olson were nucking futs (in a strategic sense; tactically they're quite brilliant) to bring this case in this venue at this time -- it will be a huge setback for gay rights.

Is this the same Obama that ordered "his" Justice Department to drop its enforcement of immigration laws, but to double down on the denial of offshore oil drilling permits no matter what a Federal Judge orders?

"If it is still a law are they going to continue to enforce it until a court finds it unconstitutional?"

That's what they say their plan is:

"Mr. Holder said that the administration will continue to enforce the act unless and until Congress repeals it, or a court delivers a 'definitive verdict against the law’s constitutionality.'"

I really don't have a problem with an administration declining to defend a law in court if it believes in good faith it can't be honestly defended. But I think the law needs to find a way for someone other than the administration to have standing to defend it in court so the issues are joined with adequate arguments on each side.

Ask Erkle about his nefarious waffling on the middle-east uprisings and you hear confusion, chaos, and ineptitude, but once he goes domestic, oh yeah, he all of a sudden focuses like a laser beam.

Sees his goons in the union attacked in Wisconsin. BAM!!! He doom troops his thugs out there in his name and now his scorched earth policy to drive the US to the bottom as fast as possible before he is removed from office is to abandon DOMA?

Y'know, it's very interesting to listen to the Obama apologists go into spin mode when I mention to them that he used to be against gay marriage. They claim that of course he really was for gay marriage but had to say that he wasn't. I counter "So he was just pandering to moderates? Or, to put it more bluntly, lying?" Well, the Obamapologists hate the word "lying" even though they support it. "So," I ask innocently, "How do we know he's not just pandering to his base with this announcement, and lying again?"

If he doesn't do it you criticize him. If he does do it you criticize him. He's actually making progress for gays, and that's good--and surely he would be making progress even faster if the right wasn't so crazy about this stuff. So who's your friend on this issue? Certainly not any of the Republicans you have been voting for and touting.

"The Obama Justice Department has adopted a legal stance identical to, if not more aggressive than, the Bush version. It argues that the court-forced disclosure of the surveillance programs would cause "exceptional harm to national security" by exposing intelligence sources and methods." ( http://online.wsj.com/article/SB123638765474658467.html )

Power grabs are power grabs no matter which president or party does them. Personally (and I know there are many that agree) I think the founders knew what they were doing when they created checks and balances. Rather than tell me why gays should or should not get married - lets talk about Executive Branch over reach of power.

It is not unprecedented for an administration to decline to defend the constitutionality of a law. No less a conservative than John Roberts, then the Solicitor General, convinced the first Bush Administration to do exactly that with regard to minority set-asides in Metro Broadcasting v. FCC.

For more see http://www.nonplussed.org/2011/02/24/more-on-obama-and-doma/